Just as large-scale economic forces are causing gentrification
of our cities and the elimination of public spaces that allow culture and
politics to flourish, powerful economic interests have also launched a
full-scale attack on our public information spaces, many of which exist
on the Internet. This article uses the disappearance of public spaces in
our cities as a metaphor for the disappearance of public spaces in cyberspace.
It focuses on the Content Industry's use of copyright law to assault the
public domain and their attempt to turn all information into commodities.
And it discusses the horrific implications of all of this on free speech,
artistic endeavors, and our entire way of life.

The Importance of Public Space

Public spaces have played a fundamental role throughout
history. From the time that humans first defined private spaces, public
spaces have served as places where people have come together to exchange
ideas. From the ancient Greek's Agora to the Middle Ages' Commons
to early 20th century American urban streets and parks, public
spaces have been centers for free speech and public discourse.

Historically, the public spaces of cities have been
centers of diversity. Even when housing was segregated along class or ethnic
lines, public spaces were where people from all kinds of different backgrounds
were exposed to each other. City streets, parks, and public transportation
were melting pots of cultural differences, places where one would encounter
people who dressed and spoke differently, hear people expressing opinions
that one would never hear amongst their "peers", see people engaged in
activities one had never seen before. The diversity that people were exposed
to in these public spaces was eye-opening, and led them to new ideas and
to see beyond their insular world. In their book on the negative effect
of the automobile on our cities, Safdie and Kohn discuss the vitality of
public spaces in cities before cars took over:

"Urban historian Spiro Kostof defines pre-automobile
cities as 'places where a certain energized crowding of people' took place.
Historical cities provided intense and active meeting places for commerce,
the exchange of ideas, worship, and recreation. Even dictatorships produced
a wide variety of spaces for formal and informal public gathering. People
of diverse backgrounds came to, and lived in, the city, knowing that this
conglomeration of people and the interaction offered by it would enrich
their lives." (Safdie & Kohn 1997, pp 12-13)Public spaces have served as centers for free speech.
Because they are defined as areas which are open to everyone, even when
attempts have been made to stifle speech (from prohibition of IWW speech-making
in the early part of the century to attempts to remove the homeless in
the latter part of the century), this stifling of speech has had to take
place in public and in front of people who may have never before seen how
authorities treat marginal groups. And despite periodic attempts to stifle
speech, public spaces have still been one of the few places where new ideas
can circulate in the open.

Public spaces are important for diversity and free
speech, as well as for the exchange of ideas. The exposure to differences
that takes place there helps new ideas germinate. Public spaces are important
to the creative process.

The Disappearance of Public Space
in our Cities

The latter half of the 20th century saw
the rapid decline of intermingling in public spaces. The growth of the
suburbs removed people from inner-city streets to low-density neighborhoods
-- usually having a very narrow socioeconomic and ethnic make-up. The growth
of the automobile removed people from the melting-pot of public transportation,
and put them in an isolated metal chamber almost every time they left their
homes.

With the rise of the suburbs we saw the creation
of pseudo-public spaces that looked like public spaces on one level, but
had key elements of public spaces stripped away. These pseudo-public spaces
include Malls, theme parks, and sports stadiums. A pseudo-public space
resembles a public space with its diversity of people. But Malls, stadiums,
and theme parks are privatized spaces that are "sanitized" of certain elements.
Attempts to control free speech in public spaces pale in comparison to
the success of pseudo-public spaces in controlling speech. For example,
most Malls prohibit leafleting or making speeches. Mall security guards
routinely remove homeless people as well as anyone wearing what they deem
to be gang colors. As a private space, Malls can control speech and looks.
They can "sanitize" their environment. And they can prohibit activities
that do not lead to their raison d'etre -- consuming commodities.

The last quarter of the 20th century saw
a rapid disappearance of privacy in public spaces. While public spaces
never afforded the privacy of homes, people have traditionally felt that
they can do things in public without being monitored or tracked. And even
though certain individuals might observe a person's single particular action,
that person would still have expectations that they were only observed
for brief moments and would feel that s/he could be "lost in the crowd".
But in the last 25 years we've seen an enormous growth in devices to not
only monitor but to record an individual in public as well as pseudo-public
spaces. Cameras that were first installed in banks ostensibly to identify
robbery suspects are now commonplace in all types of stores and throughout
pseudo-public spaces like Malls. And in early 2001 it was revealed that
every person entering the Superbowl had their photograph secretly taken
and compared to an image database of "known suspects" (Slevin 2001). Cameras
have flooded real public spaces as well -- being mounted on lamp-posts
to fight crime, on public transportation to prohibit muggings, and at intersections
to catch signal-jumpers. There are fewer and fewer public spaces devoid
of monitoring cameras. And in coming years, a person's movements through
both public and private spaces will be monitored through the global positioning
systems (GPS) within their cellphones.

The monitoring and recording of people in public
and pseudo-public spaces is likely to have a chilling effect on free speech
and the expression of controversial views. For example, someone who would
publicly castigate a government agency (such as the police or IRS) might
fear retaliation if his/her statement were recorded. And awareness that
one is being recorded is likely to affect other types of diversity as well
(for instance, many people who anticipate being recorded will dress or
groom themselves in a more conventional way than if they know they're not
being recorded).

As public spaces disappear and as we see invasive
recording entering both public and pseudo-public spaces, we're likely to
see a diminishment of: free speech, diversity, and the creativity that
comes from exposure to new ideas.

The Disappearance of Public Space
in Cyberspace

Since the earliest days of the personal computer,
this technology was seen as a vehicle to restore disappearing public spaces.
Lee Felsenstein, one of the founders of the personal computer, advocated
using this new tool to restore an information commons (Felsenstein). Felsenstein
and many of his fellow personal computing pioneers envisioned that the
Internet could provide a vast public space that would reflect diverse interests
and encourage free speech and creativity.

For many years popular discourse framed the Internet
as a diverse free speech zone where "anyone can be a creator". But in the
early days of the WorldWide Web, public areas of the Internet became increasingly
walled-off. In 1994 this author warned of the "colonizing effect" that
commercial interests would have on the public space that the Internet then
represented (Besser 1994). And in 1995 he discussed how control by large
industries would supercede the public benefit and diversity aspects that
the Internet had promised. Almost a decade later, we see Internet spaces
increasingly fenced off, and peoples' actions increasingly tracked and
recorded.

Much could be written about the various ways in which
today diversity, free speech, and public spaces are disappearing. The remainder
of this article focuses on just one particular area in which this is happening
-- the disappearing information commons both online and in print due to
the assertion of strong intellectual property rights. In the not-too-distant
future, the raw material that 'zines and magazines (such as Processed
World) recontextualize will be difficult if not impossible to use.
Technological protection mechanisms combined with severe changes in copyright
law will make it increasingly difficult to use drawings, photographs, and
clip-art without first paying for permission to use it.

In the past several years we have seen a major effort
aimed at overhauling intellectual property law. Under the guise of responding
to the challenge posed by the increasing amount of information in digital
form, the content industry (publishers, motion picture studios, music distributors,
etc.)has engaged in a veritable assault on long-standing public
interest practices. In what law professor Pam Samuelson has termed the
"Copyright Grab" (Samuelson), the content industry is exploiting concerns
over digitization and attempting to reshape the law by strengthening protection
for copyrightsholders and weakening public rights to access and use material.

In the remainder of this article, the author first
examines intellectual property lawís origins as an attempt to create a
public good. He then discusses how both the advent of digital technology
and the consolidation of control in the hands of the content industry have
created new structural and economic conditions for intellectual property.
He shows how the content industry has in the past tried to exploit changing
underlying conditions in a effort to strengthen their ownership rights,
and demonstrates how they are doing that again in the current environment.
Finally, he cites the threat to "social good" from the content industryís
continuing success at reshaping public policy.

The Origins of Copyright in the
US

Though many copyright holders view copyright as an
"economic right" that protects their ability to make money off content,
US copyright law was actually established to promote the "public good"
by encouraging the production and distribution of content. Article 1, Section
8 of the US Constitution states:

The Congress shall have power ...to provide for
the ... general welfare of the United States To promote the progress
of science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and discoveries;
[emphasis added]The stated goal of copyright is to "provide for the
general welfare" and "promote the progress of science and useful arts"
by encouraging further creation. The rationale behind copyright is that
granting creators temporary monopoly rights over their creations will encourage
them to create more. The real goal of copyright is to ensure that new knowledge
will be developed and circulated through society.

Underpinning much of the recent rhetoric by the "content
industry" is a view of copyright as an unlimited economic right. This logic
is misguided since the economic rights granted by copyright are just a
byproduct of attempts to fulfill the societal need to increase creativity.
Though it granted Congress the power to give creators monopoly control
over their creations, the Constitution was careful to set controls on that
monopoly by stating that it could only endure for "limited times".

Public Domain, Fair Use,
and First Sale

Prior to the "digital age" a delicate balance had
emerged between copyright holders on the one hand, and the general public
on the other hand. Copyright holders had certain exclusive rights over
their material, but those rights were tempered by access rights held by
the public. The three most important public rights were thepublic domain,fair use, and first sale.

Copyright has always been just a temporary monopoly,
and by Constitutional edict it can only last for a "limited time." When
a copyright expires, the work enters the public domain. The
public domain is a diverse unregulated public space. Anyone can draw on
material in the public domain for any purpose whatsoever. Unlike material
under copyright, no one can charge me for using the public domain or prevent
me from using public domain material in a way that might offend someone.
A rich public domain has allowed creativity to flourish. Because Romeo
and Juliet is in the public domain, we can have a wide variety of creative
interpretations of this work (from one set in contemporary Mexico to West
Side Story), all without having to get permission from a copyright holder
(who would not only charge for the use, but would also likely limit creative
use that the holder didn't like). The public domain is a critical public
space that is an essential part of both education and creativity.

Fair Use (a common practice which was
codified into law in Section 107 of the 1976 Copyright Law) limits a copyright
holderís monopoly over the use of his/her work by permitting copying under
a limited set of circumstances for uses such as education, private study,
and satire. The fair use doctrine assumes that these types of uses
constitute a compelling enough social good that even if a copyright holder
wanted to prevent such uses of their material, the law would not support
them. It is fair use that allows students to photocopy copyrighted
articles for personal use, teachers to read excerpts from copyrighted works
in class, reviewers to quote from copyrighted works in their published
reviews, and satirists to incorporate portions of copyrighted works into
their satires.

The First Sale doctrine limits a rightsholderís
control over a copy of a work to the very first time that copy is sold.
According to first sale, anyone who purchases a work can then do
what they want with that copy, even if the rightsholder opposes that use.
First sale allows the purchaser of a work to resell it, lend it,
share it, or destroy it -- without ever consulting the rightsholder. Among
other social benefits, the first sale doctrine has permitted libraries,
used bookstores, and used record stores to operate without having to consult
with a rightsholder each time they lend or sell a work.

How the Digital Age is Different

The content industry fears that fair use and
first sale in the digital age will cause them to lose significant
control over their copyrighted content, threatening their profits. Because
a digital work is so easy to copy, many rightsholders fear that fair
use will provide a loophole for individuals who wish to redistribute
a work to others. They also fear that first sale will permit their
first buyer to redistribute a work for free, ruining the rightsholderís
market and destroying authorship incentives. These fears have been the
rationale stated by the content industry in their attempts to press for
legislation which would virtually eliminate fair use and first
sale in the digital world.

Here we will deal with two problems with the content
industryís position: (1) that in the past they have raised the specter
of massive financial loss due to copying, yet history has proved their
fears groundless; and (2) that even if the content industry faces loss
of control in the digital age, the legal changes they have come up with
will result in an immense loss for the public, and tip the delicate balance
of copyright law firmly on the side of the content industry.

When home videorecorders were first introduced in
the United States in 1975, the content industry feared that these would
be used for massive copyright infringement. In 1976 key members of the
content industry (Walt Disney Productions and Universal City Studios) filed
suit in US District Court requesting an injunction against the manufacture
and marketing of Betamax videorecorders. They contended that these machines
would cause them significant financial harm because individuals could use
them for copying their intellectual property. A series of litigation followed,
culminating in a 1984 U.S. Supreme Court decision (Sony Corporation of
America et al. v. Universal City Studios, Inc. et al.). This landmark decision
recognized home videorecording as a fair use, and allowed Sony to
continue marketing the machines (Bettig, Home Recording Rights Coalition,
Marlow, Lardner).

In the course of litigation, representatives of the
content industry strongly supported the Universal/Disney position. Jack
Valenti, President of the Motion Picture Association of America, called
the Betamax a "parasitical" device (Lardner, page 115). He claimed that
VCRs posed significant threats to the film industryís markets:

because people who subscribed to cable television could
record off the air and lend these to friends, very few people would subscribe
to cable and cable TV would dry up

because people could tape off the air then fast-forward
through commercials, TV advertising revenues would tumble

if people could tape movies off the air and watch them
at home for free, they would stop going to movie theaters, and the studios
would face financial hardship (Bettig, pages 169-170)

With 20 years of hindsight we can look back and see
that none of these dire predictions have come true: the cable television
industry is financially healthy, television advertising revenues havenít
tumbled, and movie theaters still attract a healthy business. Ironically,
the studios that tried to prevent the use of home videorecorders now make
almost half their income from rentals and sales to the home video market
that they had previously sought to eliminate as a threat to their profits.

In the past four years, legislators shaping intellectual
property law for the digital age have heard vociferous testimony from the
content industry concerning their fears of tremendous revenue losses unless
copyright laws are tightened. Most of the proposed legislation has responded
directly to these fears in ways that will effectively eliminate fair
use and first sale in the digital age. Public interest coalitions
(including libraries, educational institutions, and consumer groups) have
asserted that legislation in the digital age should maintain the kind of
balance between rightsholders and the public interest that existed with
analog material, rather than tip this balance significantly towards the
content industry. Attempts to remedy perceived threats to rightsholdersí
profits create severe threats to public interests that have traditionally
been protected by fair use and first sale.

Fair use is a powerful tool for both education
and social commentary. This concept allows teachers to present small portions
of a work for class discussion, and reviewers to quote from a work without
obtaining permission from the rightsholder. Fair use also permits the repurposing
and recontextualization of a work for the purpose of parody or social comment.
Re-using something for a purposes other than its original intention is
a fundamental part of creativity. Kids dress up and play-act in clothes
made for grown-ups, they use tin cans for telephones, and they create collages
from magazine photos and articles. Creative adults constantly repurpose
content in a wide variety of social commentary situations (from rap music
sampling, to Processed World collage illustrations, to postmodern art).
The elimination of fair use would not only hurt education and social
welfare, but could stifle the very creativity and content production that
copyright was intended to foster. It would also drastically alter the delicate
balance between rightsholders and information users.

Attempts to eliminate the first sale doctrine
in the digital age raise even more critical issues. A key aspect of first
sale has prevented the rightsholder of intellectual property from completely
controlling who has access to it and how it is used. Though a publisher,
newspaper, or Hollywood studio in the analog world might limit the audience
for an initial set of sales, someone buying the work could turn around
and sell it to anyone else. But in proposed digital age legislation, the
purchaser of a work could not legally sell it or give it away without permission
from the rightsholder. In a world without first sale:

publishers could refuse to distribute to unfriendly
critics

organizations could prevent gadflies or consumer groups
from viewing documents that might be used to paint them in unflattering
terms

authors could prevent known satirists from getting copies
of their works

libraries would not be able to lend works

The proposed elimination of fair use and first
sale for digital material will gut much of copyrightís ability to promote
the public interest, turning it into a vehicle that guarantees economic
rights to copyright holders. This would continue a trend to increasingly
favoring rightsholders over consumers and the public good.

What Has Copyright Become?

The framers of the US Constitution envisioned intellectual
property law as guaranteeing a set of temporary monopoly rights to individuals
-- "authors and inventors" to encourage the production of new works. Intervening
economic changes have created the current situation in which individuals
who create intellectual property have not had the resources or channels
of distribution to disseminate their creations. Today, most creators have
little choice but to sell their copyright to corporations who then disseminate
these works. (For example, an individual author might have a hard time
financing the printing of his/her book, but even if able to do so, s/he
would not be able to distribute copies to bookstores without a major publisher
or distributor. So the author is forced to sell the copyright to a publisher
in exchange for printing, distribution, and a small portion of the profits.)
For the most part, copyrights are not held by individuals, but by corporate
entities who are part of the content industry. The content industry would
argue that strengthening their position allows them to provide greater
incentives to individual creators, but many creators vociferously challenge
that notion (Tasini). Strengthening copyright laws does improve the position
of the content industry by giving them a relatively untempered monopoly
over content, but it does so at the expense of the public good. And it
does little to encourage the creation of new content.

Proposed legislation that would turn copyright laws
into economic guarantees for the copyright holders is just the most recent
in a series of attempts by the content industry to tilt the balance in
their favor. If content providers have their way, intellectual property
use will move away from domains that have at least some provision for public
good and social benefit (such as fair use and first sale)
-- and move these dealings into arenas where only economic relationships
apply.

"Limited Time"

The "limited time" duration of copyright guaranteed
that works would relatively quickly enter the public domain. This provision
was instrumental in ensuring that the law promoted the creation of new
works, rather than the extraction of profits from content. The duration
of a copyright guarantee has increased over time (see chart A). A 1709
law set copyright for 14 years. Prior to 1976, copyright was granted for
28 years and renewable for another 28 years. The 1976 Copyright Act increased
the term to 75 years, and the 1998 Sonny Bono Term Extension Act increased
the term still further -- to 95 years for corporations and 70 years after
death for individuals.

Year

Copyright
Duration

1709 (British)

14 years

pre-1976 (US)

28 years + 28 year renewal

1976 (US)

75 years (corporate)

life + 50 years (individual)

1998 (US)

95 years (corporate)

life + 70 years (individual)

Chart A: Copyright Duration

After intense lobbying and public relations efforts,
members of the content industry have indicated that they would like to
see the public domain completely eliminated. In fact, provisions within
the 1998 Digital Millenium Copyright Act took works that had fallen into
the public domain and put these back under copyright. The 2 companion 1998
copyright acts have taken a wide variety of materials that should be entering
the public domain very soon, and placed these back under copyright control
for at least another 20 years (which gives the content industry plenty
of time to extend copyright for still another 20 years). Songs like Irving
Berlin's Blue Skies, Harry Woods' When the Red, Red Robin Comes
Bob, Bob Bobbin' Along, and Hammerstein and Kern's Ol'Man
River and Showboat should all have entered the public
domain next year, yet the new laws will place these all under copyright
control for at least another 20 years. Stories by Virginia Wolf, F. Scott
Fitzgerald, Ben Hecht, Rudyard Kipling, P. G. Wodehouse, and Zane Grey
have also been eliminated from the public domain for at least another 20
years.

Some content industry promoters defend their encroachments
on the public domain by contending that the new economic models of the
digital age will eliminate the need for a public domain. They contend that
maintaining copyright in perpetuity allows them to create "micro-payment"
delivery systems that will allow anyone to access older content for just
a few pennies for each use. Their position fails to take into consideration
that copyright is as much about control as it is about access, and that
under the system they propose, rightsholders will still be able to prevent
uses that they do not like. Following their logic would turn the public
domain into a controlled pseudo-public space where information is clearly
a commodity to be bought and sold.

This lengthening of copyright duration flies in the
face of the Constitutional limitation on copyright which granted Congress
the right to institute copyright protections, but only for limited times.
The Constitutionally mandated goal of copyright is to encourage the production
of new works, both by guaranteeing creators some exclusivity for a limited
time, and by making sure that there is a robust public domain of copyright-free
material that creators can draw on and incorporate into new works. It is
absurd to think that 75 or 95 years is a "limited time", and even more
absurd to rationalize that exclusive rights lasting beyond oneís lifetime
would provide incentives that would encourage a creator to create more
works.

In a February 1998 editorial, the New York Times
(itself a major content-holder that benefits from strong copyright legislation)
sharply criticized the extensions of copyright duration that have since
become law.

...Supporters of this bill, mainly the film industry,
music publishers and heirs who already enjoy copyright revenues, argue
that extending copyright will improve the balance of trade, compensate
for lengthening life spans and make American protections consonant with
European practice. But no matter how the supporters of this bill frame
their arguments, they have only one thing in mind: continuing to profit
from copyright by changing the agreement under which it was obtained.

There is no justification for extending the copyright
term. Senator Orrin Hatch argues that the purpose of copyright is "spurring
creativity and protecting authors." That is correct, and the current limits
do just that. The proposed extension edges toward perpetual patrimony for
the descendants, blood or corporate, of creative artists. That is decidedly
not the purpose of copyright.

Copyright protects an author by granting him the
right to profit from his own work. But copyright also protects the pubic
interest by insuring that one day the right to use any work will return
to the public. When Senator Hatch laments that George Gershwinís "Rhapsody
in Blue" will soon "fall into the public domain," he makes the public domain
sound like a dark abyss where songs go, never to be heard again. In fact,
when a work enters the public domain it means the public can afford to
use it freely, to give it new currency.

...[T]he works in the public domain, which means
nearly every work of any kind produced before the early 1920ís, are an
essential part of every artistís sustenance, of every personís sustenance.
So far Congress has heard no representatives of the public domain. It has
apparently forgotten that its own members are meant to be those representatives.
(NY Times, February 21, 1998 editorial)

Lengthening of copyright duration is particularly onerous
in the context of other attempts to assert copyright over material either
already in the public domain or about to enter it. Corbis Corporation (a
digital image stockhouse wholely owned by Bill Gates) contends that when
they digitize an image of an art work or photograph, their digitization
creates a new copyright which will persist for the duration of copyright
protection beginning with the date of digitization. If their contention
that digitization is a substantial creative act is upheld by the courts,
it will mean that the digital version of works already in the public domain
will remain under copyright protection for an additional 95 years.

Proposed database extraction legislation would apply
copyright to an entire database, and start the copyright duration clock
ticking every time a new item was added to the database. Under the proposed
legislation, every time an online collection of text or images added a
new work to their database, it would extend the copyright duration term
for anything that was extracted from their database. This would allow a
database provider to create a perpetual copyright (by adding something
new to the database every 90 years), preventing items in the database from
ever entering the public domain. This legislation died in the 1998 Congress,
but will be reintroduced in 1999 with strong backing from the content industry.

Recent attempts to overhaul the copyright law have
been prompted by strong lobbying efforts from the "content industry". The
content industry was one of the leading supporters of Clintonís first campaign
for the presidency, and after taking office Clinton appointed former copyright
industry lobbyist Bruce Lehman as Assistant Secretary of Commerce and Commissioner
of Patents and Trademarks. Lehman was given the task of managing efforts
to overhaul the nationís intellectual property laws, and he was the driving
force behind the Administrationís green paper and white paper recommendations
on major changes to intellectual property laws (Samuelson).

As copyright legislation was passing through Congress,
content industry lobbyists aggressively courted Congresspeople. The Association
of American Publisers (AAP) hired former Congresswoman Pat Shroeder to
head their organization and act as chief spokesperson. In the 1996 election,
the content industry had already donated over $11 million to congressional
campaigns, split fairly evenly between Democrats and Republicans (Makinson).
In the early part of the 1998 campaign (while copyright legislation was
being debated in Congress), Hollywood connected donors gave more than $1.3
million to congressional campaigns (Mother Jones 400). The content industry
also waged a strong public relations campaign, claiming that the American
economy would suffer irreparable harm if copyright controls were not tightened.
After the Digital Millenium Copyright Act and the Sonny Bono Term Extension
Act finally passed through Congress, an Associated Press story revealed
that Disney had lobbied hard for the new law (particularly portions which
extended copyright protection for an additional 20 years) because Disneyís
copyright over characters such as Mickey Mouse, Goofy, and Donald Duck
were due to expire soon (Salant). Not surprisingly, a week after the Digital
Millenium Copyright Act was signed into law, Bruce Lehman resigned his
Administration post, having accomplished most of what he set out to do
on behalf of the content industry.

Licensing

For the past decade, most publishers have refused
to sell material in digital form to libraries. Instead, they require libraries
to license this material. Licenses are contractual arrangements, and publishers
claim that rights such as fair use do not apply to these arrangements.
This has put publishers on such a collision course with librarians, that
AAP president Pat Shroeder regards librarians as the enemy. "Publishers
want to charge people to read material; librarians want to give it away."
(Weeks)

Under licensing schemes, material is leased rather
than bought outright. This raises a myriad of concerns for libraries. Licenses
are only for a limited number of years, and at the end of that period license
fees may be raised drastically or, if the market isnít large enough, the
material may be eliminated altogether. The licensor may eliminate particular
items for economic reasons or because they are controversial, making it
very difficult for a library to build collections or to maintain a historical
record of the resources they have made available.

Site licenses of digital works of art can cause particular
problems for faculty and students who build curricular or creative materials
that incorporate these works. Faculty and students are hesitant to spend
the extensive time needed to create new digital materials incorporating
licensed digital images unless they can be sure that the campus license
(and each individual image that was originally part of it) will continue
in perpetuity, and that they can take their creations with them when they
leave the campus. Faculty sabbaticals at another campus, faculty or students
taking positions elsewhere, or even showing a portfolio to a potential
employer would all be prohibited by most licensing agreements. This is
a central problem to any type of licensing agreement; if a licensor did
in fact choose to offer guarantees of continuity, that licensor would run
the risk of a university deciding to cancel their license payments yet
still maintain the continuity of access.

Licensing material in digital form can also raise
privacy concerns. A recent trend in university licensing of digital material
is for members of the university community to access that material directly
from a central site maintained by the publisher, rather than from a local
site mounted by the university. This type of architecture requires that
each individual be identified to the publisher as a valid member of the
licensed university community. This approach carries the potential for
dangerous violations of the privacy that university researchers have come
to expect. Libraries carefully guard circulation information, and many
purposely destroy all but aggregate statistics to avoid having to respond
to law enforcement agencies seeking an individualís reading habits. It
is extremely unlikely that publishers will provide this kind of privacy
protection. Today a large number of websites monitor the browsing that
goes on at their site, tracking who is looking at what, how often, and
for how long. A whole industry has emerged that purchases this kind of
personal marketing information from site managers and resells it. In difficult
financial times, even licensors who are committed to privacy concerns may
find the temptation of payment for this kind of information difficult to
resist.

Another key concern for libraries is the way in which
licensing digital information will affect interlibrary loans (ILL). Due
to consolidation in the publication industry, scholarly journal subscription
costs have skyrocketed in recent years (Guernsey, Case, McCabe, Wyly).
The only way that libraries have been able to respond to this is by developing
cooperative purchasing agreements with other nearby libraries. But most
licensing agreements for journals in electronic form prohibit ILL or any
other form of access outside the immediate user community. Licensing has
the potential of not only destroying librariesí recent response to the
crisis of the rising cost of serials, but it may also destroy their historic
cooperative lending practices. Libraries, which have traditionally cooperated
to guarantee that users of even the poorest library could employ ILL to
borrow materials that their library could not afford to purchase, are likely
to find themselves prohibited by licensing agreements from engaging in
ILL.

Intellectual Property Law Used to
Suppress Creativity and Free Speech

The increasing use of licensing schemes to avoid
domains (like fair use) where the public good must be taken into consideration
is part of a larger recent trend where commercial transactions take precedent
over what used to be regarded as public rights or part of the public good.

In recent years, libel laws have been used to try
to suppress criticisms that have been traditionally protected by free speech.
These lawsuits, filed by corporate entities against individuals who have
criticized them, have laid the burden of proof upon the defendants, forcing
them to prove that all their criticisms were true. In 1998 Oprah Winfrey
won an expensive court battle defending herself against a $12 million lawsuit.
The lawsuit, filed by the cattle industry under a recent food disparagement
law, challenged statements Oprah made on her television talk show about
the health of eating beef. According to the New York Times, "critics say
that they [recent food disparagement laws] are a serious infringement on
free-speech protections and are driven by business interests intent on
silencing journalists and others who question the safety of the American
food supply"(Verhovek). In a similar case in Britain, McDonalds sued activists
from London Greenpeace who had created a leaflet urging consumers to boycott
McDonalds for a host of reasons (ranging from health to working conditions
to the effects of cattle raising practices on tropical rainforests). In
this long-running "McLibel" case, the defendants were forced to prove each
of the accusations they had made in their leaflet (Vidal).

Many groups within our society use the threat of
intellectual property infringement litigation to avoid criticism or suppress
works that they disapprove of. As many of the cases listed below show,
limitations to the fair use defense against copyright infringement
can result in the elimination of parody and satire, the curtailment of
free speech, or the suppression of creativity, particularly in the form
of new artistic styles:

In 1999 eToys, a toy distributor, sued the artist group
eToy accusing them of trademark infringement, trademark dilution and unfair
competition for using the internet domain name etoy.com for their satiric
website. Even though the artists had used the etoy name before the toy
distributor even existed, a Los Angeles Superior Court judge granted a
preliminary injunction against the artists, and under threats of $10,000/day
fines, the artists stopped using the domain name (Mirapaul 1999). Only
after an extensive protest campaign by artists and free speech advocates
(as well as some guerilla direct-action tactics) did the toy company drop
their lawsuit (Mirapaul 2000).

In 2000 Mattel sued artist Tom Forsythe claiming that
his satiric photographs of Barbie dolls violated their copyright and trademarks
over Barbie. Forsythe had sold postcards of his photographs with the dolls
posed performing household chores and in sexual positions, obviously commenting
on the role of Barbie in perpetuating gender stereotypes. In February 2001
a federal Appeals Court ruled that Forsythe's did not violate Mattel's
copyright or trademark. (Mattel 2001)

In the late 1980s artist Jeff Koons created a wooden
sculpture of a couple holding a large number of puppies in their arms.
Photographer Art Rogers, who had taken a photograph of a couple holding
puppies in their arms and was marketing it as a postcard, sued Koons for
copyright infringement. Koons claimed that his work was parody and that
most art was derivative in similar ways. The courts ruled against Koons
(reaching as high as a June 1992 decision of the US District Court of Appeals),
and ordered him to pay a large financial settlement to Rogers.

In the late 1960s satirical cartoonist Dan OíNeill created
a mouse which he used as a minor character in an underground comic book
that satirized a detestable corporate America. Walt Disney Productions
sued OíNeill and his publisher for copyright infringement. In a series
of cases and appeals that nearly ruined OíNeill financially, the courts
ruled that publication of a comic including the mouse was a violation of
Disneyís copyright (Walt Disney Productions vs The Air Pirates). The rulings
in this case raises disturbing issues about copyright infringement being
used to inhibit an artist from engaging in satire or parody of a cultural
icon.

In 1998, a French AIDS awareness advertising campaign
withdrew two ads under threat of suit by Walt Disney Inc. One ad featured
Snow White in suspenders and fishnet stockings and the other featured Cinderella
in a seductive pose (Disney Pressure Halts French AIDS Ad Campaign). Disney
contended that these ads constituted copyright infringement, and the mere
threat of litigation caused the AIDS awareness group to pull their ads.
This incident is interesting both because it did not require actual litigation
(the mere threat of litigation assured compliance) and because the characters
Snow White and Cinderella were not created by Disney, and were folklore
characters for hundreds of years before the Disney company was even formed.

In 1990 the estate of Roy Orbison sued the rap group
2 Live Crew for copyright infringement because they used "sampling"
of Orbisonís original song in their parody of "Pretty Woman". Though the
Federal District Court supported 2 Live Crewís claim that parody was a
fair use, in 1992 the Court of Appeals for the Sixth Circuit reversed the
decision, contending that fair use did not come into play because the parody
song had commercial character. This was a disturbing decision that would
severely limit most rap group "sampling" and any kind of parody that might
be sold for a profit. Luckily, in 1994 the Supreme Court overruled the
appeals court and held that their parody was fair use (Luther R. Campbell
et al. vs Acuff-Rose Music, Inc.).

In 1991 the band Negativland released a single
parodying radio disk jockey Casey Kasem and the group U-2ës
song "I Still Havenít Found What Iím Looking For". Almost immediately U2ís
distributor (Island Records) and publisher (Warner/Chappell) went to court
charging copyright infringement. After only 2 weeks, all recordings were
pulled from the shelves, and the recording has never made it back into
music stores. The several years of ensuing litigation almost bankrupted
Negativland members. But the band, which had a history of cultural satire,
continued to adamantly defend the social importance of artistic appropriation
such as sampling. "Throughout our various mass media, we now find many
artists who work by ëselectingí existing cultural material to collage with,
to create with, and to comment upon. ... The psychology of art has always
favored fragmentary ëtheftí in a way that does not engender a ëlossí to
the owner. Call this ëbeing influencedí if you want to sound legitimate".
(Negativland, page 154).

In Fall 1996 webmasters of fan sites for Star Trek
began receiving letters from a Viacom/Paramount attorney charging copyright
and trademark infringement. The letters demanded that all such material
be removed immediately, including photographs, sound files, excerpts from
books, and even "artistic renditions of Star Trek characters or other properties"
(Levitt). A few months later it was revealed that Viacom/Paramount was
preparing to make their own Star Trek website public, and used the threat
of intellectual property litigation to remove any competition or confusion
ahead of time (Granick, Ward). This litigation threat had an additional
chilling effect on free speech: a request by the Star Trek Usenet Discussion
group (rec.arts.sf.starwars) to create a new subgroup dedicated to fan
fiction was vetoed (Granick) because Paramountís litigation had claimed
that fictional accounts using Star Trek characters or settings were violations
of their intellectual property (Ward).

In a similar move, in December 2000 Warner Brothers
began sending letters to hundreds of operators of Harry Potter fan-sites,
claiming that their sites violated Warner's intellectual property rights
for a variety of reasons (their domain name included the name of a Harry
Potter character, or they published images of one of the characters on
their website). Among other things, Warner claimed thatthese fan-sites
caused confusion among Internet users, even though many of them clearly
stated that they had no connections to the publishers or authors and even
provided links to Warner's official site. Many of the teenagers operating
these sites were bullied into shutting them down and turning over the domain
names to Warner (Grunier & Lippman 2000).

In the 1990s the Church of Scientology won significant
monetary damages in a series of lawsuits against a number of former church
members who had posted criticisms of the Church to newsgroups or on their
websites. The Churchís Religious Technology Center monitors the Internet
to find postings that include portions of the churchís writings, then files
suits against the posters and Internet Service Providers (ISPs) claiming
that posting writings of the church constitutes copyright infringement.
Threatened litigation against ISP Netcom led Netcom to adopt a new policy
forbidding any posting of copyrighted material anywhere on their site,
and allowing them to act quickly to remove any material when copyright
challenges arise. The results of such a policy means that any rightsholder
can get the ISP to remove material that they donít like, even if the poster
of the material believes that posting constitutes fair use (Espe).

In 1996 the American Society of Composers, Authors and
Publishers (ASCAP) told the Girl Scouts of the USA that scout camps must
start paying a licensing fee to sing any of the 4 million copyrighted songs
that ASCAP controlled (Walker and Fagan). This included girl scout staples
such as "Happy Birthday". Many camps went songless for months, until newspaper
and talk show attention generated enough outrage that ASCAP was forced
to say that they had no intention of prosecuting girl scout camps for violations
of singing songs around the campfire. But in backing down, ASCAP still
insisted that they still might prosecute camps for playing background music
without a license. Though most citizens would bristle at ASCAPís attempts
to charge the girl scouts, as a copyright holder the law is on their side,
and the girl scoutsí only defense would be fair use (but only as
long as fair use remains a defense).

The cases listed above all transpired under previous
versions of copyright law. More recent legislation which would further
limit or eliminate fair use carries with it the danger of limiting free
speech, curtailing satire and parody, and suppressing new art forms to
an even greater degree than existed when the above battles took place.
The discourse over copyright legislation is dominated by discussion of
"economic harm" that will come to the content industry if action is not
taken. The harm to the public good that will come from further limitations
on fair use is treated merely as a minor side-effect. As Negativland wrote
in a 1993 issue of Billboard:The prevailing assumption ó that our culture, and
all its cultural artifacts, should be privately controlled and locked away
from any and all further creative uses by the audience they are directed
at ó is both undesirable and unworkable. Uninvited appropriation is inevitable
when a population bombarded with electronic media meets the hardware that
encourages people to capture those media. However, laws devised to protect
the "ownership" of transmittable information have, for example, resulted
in a music industry in which the very idea of a collage is a dangerous
one, and artists inspired by "direct reference" forms of creation do not
have the "right" to decide what their own art will consist of. Has it occurred
to anyone that the private ownership of mass culture is a bit of a contradiction
in terms? (Negativland, p 154)

Conclusion

A rich public domain of materials whose copyright
has expired creates a freely useable set of information that an individual
can draw upon for any purpose whatsoever. Fair use and first
sale add material currently under copyright to this public space, as
long as they are used for social commentary or educational purposes. Together,
the concepts of public domain, fair use and first sale form
an Information Commons -- a diverse public space for free
speech and creativity.

These three concepts are deeply intertwined with
a value system that emphasizes access to information over privatization
of information. These concepts promote democratic values such as political
critique and satire, equal access to information for education, and the
diversity of creativity that comes from letting less powerful societal
voices develop new art forms that comment upon older ones.

In recent years we have seen a veritable assault
on the public domain, fair use, and first sale ó from bullying
threats of litigation, to court cases, to harsh legislation. The content
industry is not only trying to reshape copyright from a public good into
an unlimited economic right, but they are even trying to expand their rights
into new arenas where these can be used to suppress criticism.

The content industry has complained vociferously
about potential economic harm, yet their assertions run counter to a variety
of examples which raise questions as to whether they will be harmed economically:
The Netherlands has a much more liberal policy than fair use, allowing
individuals unlimited reproduction of copyrighted material for their own
private use; and the content industry still operates profitably within
the Netherlands. As the effects from the Betamax court case show, technological
changes initially perceived as economically threatening can lead to the
discovery of new economic models involving income streams that exceed the
ones previously "threatened". And as the software industry has shown, lowering
prices not only provides a great deterrence to copyright infringement,
but can open up new markets of potential customers.

But the most devastating impact from these recent
changes is the likely transformation of information into a consumer product.
There has always been a distinct set of differences between information
and commodities. (For example, if I sell or give someone a toy, I no longer
have it; but if I sell or give them information I still retain it.) The
law has recognized this difference by treating intellectual property differently
than tangible property. As the law is changing to eliminate the public
good aspects of intellectual property, we are seeing a rapid increase in
the commodification of information. The area of authorship and creativity
will increasingly resemble the world of consumer products ó intellectual
property will become more bland and corporate controlled. Most individuals
will find it more and more difficult to become a creator, and will settle
for being merely a consumer. And diverse voices will be more and more marginalized.
As Negativland wrote in the Epilogue to their book, "We are suggesting
that our modern surrender of the age-old concept of shared culture to the
exclusive interests of private owners has relegated our population to spectator
status and transformed our culture into an economic commodity."
(Negativland, p 190) We need to stop the fencing off of our information
commons and seize it back as a public space.

Acknowledgements

Some portions of this article appeared in Peace
Review. Karen Gracy and Snowden Becker provided research assistance,
and Sharon Falk provided helpful insights. Conversations with Sam Trosow
and Pam Samuelson, as well as participation in the National Research Councilís
panel on Intellectual Property helped the author better understand many
of the legal concepts.

Besser, Howard. From Internet to Information Superhighway
in James Brook and Iain Boal (eds.), Resisting the Virtual Life: The
Culture and Politics of Information, San Francisco: City Lights, 1995,
pages 59-70.

Besser, Howard. A Class of Cultures on the Internet,San Francisco Chronicle, August 25, 1994.

Bettig, Ronald V. Copyrighting Culture: The Political
Economy of Intellectual Property (Boulder, Colo.: Westview Press, 1996).
(especially Chapter 6, "The Law of Intellectual Property: The Videocassette
Recorder and the Control of Copyrights")

Case, Mary M. "Views of the Current Marketplace for
Scholarly Journals", Association of Research Libraries Newsletter,
#200, October 1998 (http://www.arl.org/newsltr/200/intro.html)

Makinson, Larry (ed.). The Big Picture: Where the
Money Came From in the 1996 Elections, Washington DC: Center for Responsive
Politics, 1998 (http://www.crp.org/pubs/bigpicture/profiles/bp.profile02.html)

Marlow, Eugene, and Eugene Secunda. Shifting Time
and Space: The Story of Videotape (New York: Praeger, 1991). See Chapter
6, "The Home Video Market," especially pp. 121-128

New York Times. "Keeping Copyright in Balance" (editorial),
New York Times, February 21, 1998

Risher, Carol. International Publishers Copyright Council
(IPCC) Position Paper on Libraries, Copyright and the Electronic Environment,
Barcelona: International Publishers Association Annual Meeting, April 1996
(http://www.ifla.org/documents/infopol/copyright/ipa.txt)

Safdie, Moshe and Wendy Kohn. The City After the Automobile:
An Architect's Vision, New York: Basic Books, 1997